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Voluntary Intoxication and Consent in Cases of Rape
Date: 23rd February 2013
Tahir Khan QC offers some sobering thoughts
Two recent, well-publicized Crown Court trials have caused lawyers to grapple once again with the thorny issue of whether a woman rendered severely intoxicated by excessive drink can still give consent to sexual intercourse.
The following scenario is a familiar one to most criminal practitioners and has been taken from a trial at Bradford Crown Court.
A and B, two 14-year-old English girls with a history of familial turmoil and social services involvement, roam the streets late at night looking to be picked up by men in cars and for the promise of free booze and cannabis.
X and Y pull up in a fancy car and the girls jump in and are driven around. They are plied with vodka and cannabis, which they happily consume.
When asked if they want to go to a hotel, the girls agree. A is so drunk and high on cannabis that she has little or no recollection of what happens after she walks into a bedroom with X. The following morning, A realizes, as she is sobering up, that she and X have had sex.
The same thing happens on subsequent meetings with the same two men. Each time, A gets herself so intoxicated that she does not recollect the sex and, when giving evidence at X’s trial, insists she did not want to have sex but, due to her intoxication, was incapable of resisting X’s advances. She never says she was raped.
The Crown case rests on the assertion that A was demonstrably “out of it” with drink, in support of the argument that she was incapable of consenting to sex. Reliance is placed on s.74 of the Sexual Offences Act 2003, which provides: “A person consents if he agrees by choice, and has the freedom and capacity to make that choice.”
Although the Act was intended to produce statutory provisions relating to consent which would be clear and unambiguous, the Act is silent about the impact of excessive but voluntary alcohol consumption on the ability to give consent to intercourse, or indeed to consent generally.
It was only a matter of time before the Court of Appeal would be called upon to provide much-needed guidance as to the proper construction of s.74. R. v. Bree [2007]EWCA Crim 804 and subsequent cases have established these principles: if, through drink or for any other reason, A has temporarily lost her capacity to choose whether to have sex, she is not consenting. If, in that event, intercourse takes place, that would be rape. The mere fact that A had consumed excessive amounts of alcohol and cannabis does not of itself justify a finding of incapacity and, if she remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape.
Capacity to consent should not be confused with questions such as whether the alcohol made A less inhibited than she would have been if sober, nor whether she might afterwards have regretted what had happened and indeed wished that it had not. If A consented, her consent cannot be revoked ex post facto if she realizes that it was all a big mistake.
As the question of capacity to consent is a matter for the jury’s determination, accused men in the position of X will almost always find themselves at the mercy of their peers if they have had sex with a complainant who was very drunk at the time.
In the real world, the niceties of legal principle often give way to which of the protagonists gains the jury’s favour – a sobering thought
Author details
Tahir Khan QC is a senior criminal practitioner and a leading member of the criminal law team at West Yorkshire-based Broadway House Chambers, which has offices in both Leeds and Bradford. For more information, please visit www.broadwayhouse.co.uk, call 01274 722560 or e-mail [email protected]